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Following all of the latest IP developments in life sciences.

 

Issue Preclusion Means One Strike and You Are Out

While issue preclusion means one strike and you are out, a court might need to call a few balls before calling the strike that ends the case.

In Horizon Medicines LLC, et al. v. Dr. Reddy’s Laboratories, Inc. et al., No. 15-cv-3324, D.I. 468, 17 (D.NJ Feb. 24, 2022), Judge Stanley Chesler of the District of New Jersey held that two Orange Book (OB)-listed patents covering Vimovo® (esomeprazole magnesium; naproxen) were invalid for lack of written description. The holding was based on issue preclusion from an earlier Federal Circuit decision addressing to two related OB-listed patents having different claims. But it took defendant Dr. Reddy’s Laboratories (“DRL”) two unsuccessful summary judgment motions before getting it right on the third try.

The lessons from this saga are threefold: (1) persistence pays off, (2) factual analyses win the day, and (3) differences in claim language should be made meaningful, not illusory.

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